Bobtail operations are not defined on the truckers form or other standard commercial auto forms, even though the commercial lines manual (CLM) discusses such operations. The manual refers to bobtail operations as non-trucking usage, that is, when the vehicle is not rented or used for business purposes to carry property, or to haul someone else's trailers. Or, as a court of appeals in Ohio —Roseberry v. Balboa Insurance Company, 627 N.E.2d 1062 (Ohio App. 1993)—put it, bobtailing is a “tractor without a trailer.” Another court in Royal Indemnity Company v. Providence Washington Insurance Company, 707 N.E.2d 425 (N.Y. 1998) said bobtail insurance is non-trucking insurance for “a tractor without an attached trailer, which is termed a bobtail.” So mainly, bobtailing refers to the time after the driver has delivered the load and is returning home, or to a time when the driver is not hauling property for a trucking company, with the main point being that the driver is driving without a trailer attached to his truck.

If a trucking company owns all the trucks and trailers used in its business, and has only its employees driving those owned vehicles, and never hires or leases independently owned vehicles, bobtailing (or deadheading) issues would not be a problem. After all, the truckers coverage form, CA 00 12, can be issued with “any auto” (symbol 41) or “owned autos” (symbol 42) as designated covered autos; and, the who is an insured clause considers the named insured an insured for any covered auto, and also includes as an insured anyone while using, with the permission of the named insured, a covered auto that the named insured owns, hires or borrows. So, CA 00 12 would provide coverage for the named insured and its drivers regardless of whether the driver was hauling cargo or driving the vehicle home after a delivery; there are no exclusions or conditions on CA 00 12 that would prevent such coverage. (For more information on the trucker policy, see Truckers Coverage Form; the truckers policy is analyzed on the Auto E.1 pages.) (Note that the truckers form, CA 00 12, is being withdrawn from use by ISO).

Nevertheless, it is a matter of fact that many trucking companies do lease and hire trucks (and even trailers) from outside sources, and this is when definite risk exposures arise, and coverage for those exposures needs to be discussed. This is especially true when the leased truck is owned by an independent driver and the driver is able to use his truck as he wishes before and after a contracted delivery has been made.

Insurance Coverage Discussion

When a trucking company leases a truck from a driver-owner, there are at least two applicable insurance policies—the company's and the truck owner's—that can be subject to an injured party's claim should an accident occur while the truck is being used to transport the cargo of the trucking company. For example, the truckers coverage form, CA 00 12, applies to the named insured trucking company for any covered auto; and, the driver's auto policy, CA 00 01, applies to the named insured driver for any covered auto. These coverages are both on a primary basis due to the wording in the respective policies: CA 00 12 declares that the coverage is primary for any covered auto while hired by the named insured and used exclusively in the named insured's business as a trucker; CA 00 01 states that the coverage provides primary insurance for a covered auto owned by the named insured. And, the primary insurance status of the two policies means that a loss is shared on a pro-rata basis.

However, after the driver delivers his cargo and is returning home—after having left the cargo and the trailer at the delivery point—he is bobtailing. He has an accident. Does the trucking company's policy get involved because the leased truck is still being used exclusively in the named insured's business, or does the driver have to look to his own policy alone for insurance protection?

The trucking company has liability coverage under CA 00 12 for sums for which it is legally responsible because of an auto accident. And that is the key. The company must be found legally responsible for the accident caused by the driver in order for its insurance coverage under CA 00 12 to apply. (The duty to defend is a separate issue that is not addressed in this article.) The driver is an insured under CA 00 12 while the covered auto (the leased truck) is being used exclusively in the company's business and is being used pursuant to operating rights granted to the company by a public authority (the government). However, in bobtail situations, the company can say that the driver was not using the covered auto in its business. The delivery was over; the contract was fulfilled; the driver was on his own time. Therefore, CA 00 12 will not cover the driver's liability. If this reasoning is upheld, and the company is not held liable for the driver's actions, an injured claimant cannot recover under the trucking company's policy.

The driver has his own commercial auto policy that will offer liability insurance coverage to him based on the ownership or use of his covered auto. If the trucking company tries to deny his status as an insured under its policy due to the bobtailing operation, the driver still can look to his policy for coverage, and the claimant can recover under that policy.

This seems simple enough. However, the situation can become cloudy when there is a dispute over whether the driver, at the time of the accident, was engaged in the trucking company's business. In order to clarify this, the trucking company may insist that endorsement CA 23 09 be made part of the driver's auto policy. CA 23 09, truckers—insurance for non-trucking use endorsement, adds an exclusion to the business auto coverage form that declares that the insurance does not apply to a covered auto while used to carry property in any business, or to a covered auto while used in the business of anyone to whom the auto is rented. Furthermore, the endorsement says that an insured does not include anyone engaged in the business of transporting property by auto for hire who is liable for the named insured's conduct.

CA 23 09 tries to make the distinction between the driver's working for the trucking company and his driving for his own purposes. If the driver has this endorsement on his business auto policy (BAP), and has an at-fault accident while making deliveries for the trucking company, CA 23 09 excludes coverage under the BAP for any claimed damages. If the driver has this endorsement on his BAP and has an at-fault accident while bobtailing, the BAP provides the coverage for the claim and the trucking company is not considered an insured under the BAP for the damages incurred while the driver was bobtailing.

The use of this endorsement can certainly benefit the trucking company in that it may be able to avoid any involvement in an accident that occurs while the driver is bobtailing by bolstering its assertion that the driver is an insured under its truckers policy only while the truck is used in the company's business. The endorsement may benefit the driver's insurer in that it can try to exempt itself from any involvement in an auto accident caused by the driver if it can be shown that the driver was still engaged in the business of the trucking company. And the driver himself may benefit from CA 23 09 in that the trucking company may insist on the endorsement being part of the driver's auto insurance policy before any contract for delivery is signed.

Of course, the endorsement being on the driver's auto policy does not answer the questions of whether the driver was engaged in the trucking company's business at the time of the accident, and subsequently, whose insurance policy is available to pay for the injuries and damages suffered by the innocent third party, the claimant. The following court cases may help in that respect.

Court Cases

In Empire Fire and Marine Insurance Company v. Brantley Trucking, Inc., 220 F.3d 679 (5th Cir. 2000), a United States court of appeals handled an appeal from a decision on a declaratory judgment action that sought to determine the respective rights and obligations between two insurance companies. The case stemmed from a vehicle collision involving a jeep and a tractor-trailer rig riding bobtail which resulted in a dispute between the insurer for the truck owner and the insurer for the lessee of the truck.

The facts of the incident were not in dispute. Harris was employed by Brantley Trucking, and was driving a truck owned by Brantley under lease to haul cargo for Blue Flash Express. While waiting for the cargo to be loaded, Harris decided to have the truck serviced. He left Blue Flash's facilities—bobtailing—and had the oil changed, picked up some auto parts, had some other maintenance work done at a service station and then, on his way back to Blue Flash, Harris collided with a Jeep. The injured party filed a lawsuit against Harris, Brantley, and Blue Flash.

Empire Insurance was the insurer for Brantley and its policy covered non-trucking operations. Reliance had issued a truckers policy to Blue Flash. After the case was settled, Empire filed a declaratory judgment action seeking a declaration that the Empire policy did not provide coverage for the claim, and sought a summary judgment on the matter. The trial court denied Empire's motion and it appealed.

The appeals court noted that the pertinent language in Empire's policy excluded coverage “while a covered auto is used in the business of anyone to whom the auto is leased or rented.” The court said this was a bobtail policy and the exclusion clearly referred to occasions when the truck was being used to further the commercial interests of the lessee. Here, even though Harris was biding his time while the cargo was being loaded, he was furthering the interests of Blue Flash. The court said that if Harris had been out pursuing leisurely engagements, then he would not have been in the business of Blue Flash. However, since he was servicing the truck, this was a maintenance function which is part of the trucker's business and furtherance of Blue Flash's business. The lower court's ruling was reversed.

A court of appeals in Louisiana affirmed a lower court decision that the bobtail insurer of a leased tractor and not the lessee's commercial auto insurer provided coverage for an accident. In this case, a tractor owned by Bailey and an auto driven by LeBlanc collided; at the time of the collision, Bailey's tractor was under lease agreement with Mill Transportation Company. LeBlanc filed a lawsuit against Bailey, Mill, Vanliner Insurance Company (Mill's insurer), and Reliance National Indemnity Company (Bailey's insurer). After the insurers settled the claim, each one brought motions for summary judgment seeking a declaration that their respective policies were not applicable to the claim. The trial court found that the Reliance policy provided primary coverage for the accident, and Reliance appealed.

The appeals court noted that Bailey had a contract with Mill and that he drove his truck exclusively for Mill. Mill, by terms of the lease, had exclusive possession, control, and responsibility over the tractor rig at all times during the lease period. Mill was required to provide insurance for Bailey's tractor while it was making pickups or deliveries, and also while the tractor was bobtailing. Mill bought a business auto policy from Reliance to comply with the bobtail coverage and had it issued to Bailey, with the policy containing an exclusion for a covered auto “while used to carry property in any business, or while used in the business of anyone to whom the auto is rented.” So, the issue in this case was whether Bailey was using his truck in the business of Mill at the time of the accident.

The accident occurred after Bailey had made his final delivery; he was on his way home. Bailey testified that Mill did not pay him mileage from his final delivery point to his home, and that once he made the decision to go home, he was no longer subject to Mill's control or direction. Reliance argued that because Bailey was sometimes dispatched by Mill directly from his home, he in fact worked out of his home and so, the drive from his last delivery point to his home would be considered to be in the business of Mill. Reliance also contended that the only reason Bailey was at the accident site was in furtherance of Mills' business.

The appeals court said that under these circumstances, it found that Bailey was no longer in the business of Mill after he made his last delivery and started for home. Bailey was free to go where he pleased and was not subject to Mills' control, nor paid for his time. His drive home was more of a personal nature rather than a work-related function. The court said that the Reliance policy specifically provided coverage for this type of activity—namely, bobtailing— and that the Reliance policy was primary coverage on this claim.

The case is LeBlanc v. Bailey, Mill Transportation Company, Inc., and Vanliner Insurance Company, 700 So. 2d 1311 (La. App. 4 Cir. 1997).

One more example of judicial thinking on the subject of when bobtail coverage applies is Roseberry v. Balboa Insurance Company, 627 N.E.2d 1062 (Ohio App. 1993). Here, Roseberry owned a truck under lease to SSD Distribution. Roseberry made a delivery for SSD and then went out with a friend to a nearby bar. Upon leaving the bar, the friend offered to drive the truck to Roseberry's house, and while doing this, the friend drove the truck off the road and hit a utility pole. Roseberry filed a lawsuit against the friend, was awarded a judgment, and tried to collect the judgment from Balboa, his insurance company; Balboa insured the truck with a bobtail policy. Balboa refused to satisfy the judgment, and Roseberry filed a complaint against Balboa, seeking a declaration that Roseberry was covered under the terms of the bobtail policy. Balboa made a motion for summary judgment and the trial court denied it. The insurer appealed the decision.

Balboa argued that at the time of the accident, Roseberry's truck was under a lease agreement with SSD and the vehicle was displaying an SSD placard listing its ICC identification number, thus putting the truck in the service of SSD. The appeals court disagreed. The court said it needed to determine whether Roseberry was using his truck to further the commercial interest of SSD, or whether Roseberry was acting on his own. The court found that the facts of the situation were that Roseberry was not under SSD's control at the time of the accident because he was not en route, under dispatch, or in the service of SSD. The evidence clearly established the point that Roseberry was not working within the exclusive business of SSD when he and the friend went to the bar before heading home. Roseberry was bobtailing and so, Balboa's policy covered the liability claim.

The common thread in these cases is that each situation has to be decided on its own facts. The mere fact that a truck is under lease to a trucking company is not the deciding factor in determining whether a truck is being used in the business of the lessee. Whether the driver is on a personal trip or driving in the business of the lessee is a question that is subject to judicial interpretation based on the facts presented to the court. Endorsement CA 23 09 will help determine who pays what after an accident, but the endorsement can only truly be useful once a court determines who the truck driver was driving for—himself or the trucking company.

Deadheading

Deadheading is not defined on the commercial auto policies and is not discussed in the CLM. That term is used when a truck has a trailer attached but is not hauling anything. For example, the driver owns the truck and the trailer and has just made a delivery for a trucking company; there is no cargo to carry anywhere else, so the driver drives back to his house or storage facility with an empty trailer attached to his truck.

As noted, the CLM does not mention deadhead operations when it discusses how to rate non-trucking use, only bobtail operations; and, as defined, bobtail refers to driving a truck without a trailer attached. However, to be accurate, it should be pointed out that the CLM does say that, for non-trucking liability purposes, “multiply the truck, tractor and trailer (emphasis added) base premium by a rating factor …. So, it should be no surprise that the wording of CA 23 09 (insurance for non-trucking use) could allow that same endorsement to be used in both bobtail and deadhead operations.

CA 23 09 modifies the business auto coverage form. That form applies to covered autos which, by definition, includes a trailer or semitrailer designed for travel on public roads. CA 23 09 says that the insurance does not apply to a covered auto while used to carry property in any business, or while used in the business of anyone to whom the auto is rented. If the trailer is empty and is being pulled by the owner-insured's truck on the way home, that covered auto—like the truck itself—can be said to not be carrying property in any business and not being used in the business of the company that rented the truck and trailer. So, if the driver has an at-fault accident on his way home, CA 23 09 can be invoked for both bobtail and deadhead activities.

There is a case that can be said to make a distinction between bobtailing and deadheading: National Indemnity Company of Minnesota v. Ness, 457 N.W.2d 755 (Minn. App. 1990). There, the appeals court was dealing with an accident caused by a driver who was using his truck to pull a trailer owned by another entity. The driver had an auto policy with a bobtail provision in it and the appeals court decided that that provision limited liability to bobtailing only so that the policy did not provide coverage when the insured was pulling a trailer (deadheading) owned by another. However, the bobtail provision in this case was worded thusly: “this insurance does not apply while a power unit is used for the towing or transporting of any trailer or semi-trailer or while in the process of having a trailer or semi-trailer attached to or detached from it, unless such trailer or semi-trailer is owned by you and specifically described above.” This clearly does not match the wording on CA 23 09 which speaks only of a “covered auto” while used to carry property in any business; and, a covered auto under the BAP definitely includes trailers and semi-trailers. So, the distinction between bobtailing and deadheading made by this court is not really valid when CA 23 09 is used.

Furthermore, a trailer attached to a truck is considered one whole unit anyway if it is involved in an accident. For example, see the Ness case wherein the court noted that “it is difficult to imagine a situation in which a trailer, by itself, causes an accident … the trailer was dependent on a tractor for movement; the two must be viewed as a unit.” Therefore, if a driver causes an accident, whether he is bobtailing or deadheading, his covered auto is the vehicle involved in the accident while it is being used for non-trucking purposes. Whether the vehicle is just the truck or the truck and an attached trailer, as long as the units are considered covered autos, CA 23 09 will be applicable.

Of course, the case for finding coverage under CA 23 09 for both deadheading and bobtailing is stronger if the trailer being pulled by the driver is owned by him. That way, the trucking company that was using the driver's services could not be brought into a claim simply through being the owner of a vehicle (the trailer) that was involved in an accident. But, either way, under CA 23 09, the controlling factor is “the covered auto”, and not the status (owned or nonowned) of the vehicle(s). If the covered auto is both the truck and the attached trailer under CA 23 09, that endorsement will be applicable to both bobtailing and deadheading operations.